02/19/2002 01:37 PM House TRA
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE TRANSPORTATION STANDING COMMITTEE
February 19, 2002
1:37 p.m.
MEMBERS PRESENT
Representative Vic Kohring, Chair
Representative Beverly Masek, Vice Chair
Representative Scott Ogan
Representative Drew Scalzi
Representative Peggy Wilson
Representative Mary Kapsner
Representative Albert Kookesh
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 374
"An Act naming the David Douthit Veterans' Memorial Bridge."
- MOVED HB 374 OUT OF COMMITTEE
HOUSE BILL NO. 369
"An Act naming bridge number 1121, across the Knik River, the
Sergeant James Bondsteel Bridge of Honor; and providing for an
effective date."
- MOVED HB 369 OUT OF COMMITTEE
HOUSE BILL NO. 350
"An Act relating to criminal mischief and terroristic
threatening."
- MOVED CS for HB 350(TRA) OUT OF COMMITTEE
HOUSE BILL NO. 405
"An Act relating to the prosecution of criminal offenses
committed on or against ferries and other watercraft owned or
operated by the state; and providing for an effective date."
- MOVED HB 405 OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 374
SHORT TITLE:NAMING DOUTHIT VETERANS' MEMORIAL BRIDGE
SPONSOR(S): REPRESENTATIVE(S)LANCASTER
Jrn-Date Jrn-Page Action
02/01/02 2121 (H) READ THE FIRST TIME -
REFERRALS
02/01/02 2121 (H) TRA
02/01/02 2121 (H) REFERRED TO TRANSPORTATION
02/19/02 (H) TRA RPT RECD AWAIT
TRANSMITTAL NXT
02/19/02 (H) TRA AT 1:15 PM CAPITOL 17
BILL: HB 369
SHORT TITLE:NAMING BONDSTEEL BRIDGE OF HONOR
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
02/01/02 2116 (H) READ THE FIRST TIME -
REFERRALS
02/01/02 2116 (H) TRA
02/01/02 2116 (H) FN1: ZERO(DOT)
02/01/02 2116 (H) GOVERNOR'S TRANSMITTAL LETTER
02/01/02 2116 (H) REFERRED TO TRANSPORTATION
02/19/02 (H) TRA RPT RECD AWAIT
TRANSMITTAL NXT
02/19/02 (H) TRA AT 1:15 PM CAPITOL 17
BILL: HB 350
SHORT TITLE:TERRORISTIC THREATS
SPONSOR(S): REPRESENTATIVE(S)MCGUIRE
Jrn-Date Jrn-Page Action
01/23/02 2040 (H) READ THE FIRST TIME -
REFERRALS
01/23/02 2040 (H) TRA, JUD
02/19/02 (H) TRA AT 1:15 PM CAPITOL 17
BILL: HB 405
SHORT TITLE:CRIMES COMMITTED ON STATE WATERCRAFT
SPONSOR(S): REPRESENTATIVE(S)MEYER
Jrn-Date Jrn-Page Action
02/11/02 2206 (H) READ THE FIRST TIME -
REFERRALS
02/11/02 2206 (H) JUD
02/11/02 2207 (H) TRA REFERRAL ADDED BEFORE JUD
02/13/02 2258 (H) COSPONSOR(S): DYSON
02/19/02 (H) TRA AT 1:15 PM CAPITOL 17
WITNESS REGISTER
REPRESENTATIVE KEN LANCASTER
Alaska State Legislature
Capitol Building, Room 421
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 374.
NITA DOUTHIT
36975 Hakala
Soldotna, Alaska 99669
POSITION STATEMENT: Testified as the mother of David Douthit
on HB 374.
TOM BOEDEKER, City Manager
City of Soldotna
177 North Birch Street
Soldotna, Alaska 99669
POSITION STATEMENT: Testified in support of HB 374.
DENNIS POSHARD, Legislative Liaison
Office of the Commissioner
Department of Transportation & Public Facilities
3132 Channel Drive
Juneau, Alaska 9981-7898
POSITION STATEMENT: Testified in favor of HB 374 on behalf of
the department.
LADDIE SHAW, Director
Veterans Affairs
Department of Military & Veterans' Affairs
P.O. Box 5800
Fort Richardson, Alaska 99505-0800
POSITION STATEMENT: Testified in favor of HB 369 on behalf of
the department.
REPRESENTATIVE LESIL McGUIRE
Alaska State Legislature
Capitol Building, Room 418
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 350.
LINDA WILSON, Deputy Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified on HB 350that Version F corrects
her concerns about the broadness of the bill; testified that the
agency neither supports nor recommends HB 405.
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Capitol Building, Room 110
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 405.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section (Juneau)
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified on behalf of the department on
HB 405.
ACTION NARRATIVE
TAPE 02-2, SIDE A
Number 001
CHAIRMAN VIC KOHRING called the House Transportation Standing
Committee meeting to order at 1:37 p.m. Committee members
present at the call to order were Representatives Scalzi,
Wilson, and Kohring. Representatives Ogan, Masek, Kapsner, and
Kookesh joined the meeting as it was in progress.
HB 374-NAMING DOUTHIT VETERANS' MEMORIAL BRIDGE
CHAIRMAN KOHRING announced that the first matter before the
committee was HOUSE BILL NO. 374, "An Act naming the David
Douthit Veterans' Memorial Bridge."
Number 014
REPRESENTATIVE KEN LANCASTER, Alaska State Legislature, sponsor
of HB 374, said that the Soldotna City Council asked him to
bring HB 374 forward and characterized it as a fairly
straightforward bill. He said the bill would name the bridge
over the Kenai River the David Douthit Memorial Bridge.
Representative Lancaster said that the bill was widely supported
by the community of Soldotna and within the military community
throughout the state.
REPRESENTATIVE LANCASTER told the committee that David Douthit
grew up in Soldotna next door to him. Mr. Douthit was killed
February 27, 1991. Mr. Douthit served as a staff sergeant in
the U.S. Army, and he was the only Alaskan killed in the Persian
Gulf War. His wife Jesse, young daughter Rebecca, parents, and
brothers and sisters.
Number 037
REPRESENTATIVE WILSON asked if there were plans to put names on
the bridge.
REPRESENTATIVE LANCASTER said that to his knowledge, it was not.
Number 070
NITA DOUTHIT, mother of David Douthit, testified via
teleconference. She said the Douthit family wanted to thank
Representative Lancaster for sponsoring the bill, and she called
him a good family friend. She said Mr. Douthit's daughter
Rebecca would be honored by the bridge being named in his
memory. She said it would honor all veterans, as David would
have approved. She thanked the committee for its consideration
and the time spent on the matter.
CHAIRMAN KOHRING said it was an honor to have the legislation
before the committee, and he expressed his gratitude for Mr.
Douthit's service to the country.
Number 090
TOM BOEDEKER, City Manager, City of Soldotna, testified via
teleconference. He expressed the city's wholehearted support of
the bill. He thanked the committee for its action.
Number 102
REPRESENTATIVE SCALZI moved to report HB 374 out of committee
with individual recommendations and zero fiscal notes.
CHAIRMAN KOHRING asked if there would be signage put up on the
bridge.
Number 105
DENNIS POSHARD, Legislative Liaison, Office of the Commissioner,
Department of Transportation & Public Facilities, testified
before the committee. He said that the department intends to
put a sign on either end of the bridge with the new name.
Number 120
CHAIRMAN KOHRING asked if there was any objection to moving the
bill. There being no objection, HB 374 was moved out of the
House Transportation Standing Committee.
REPRESENTATIVE OGAN said that to his knowledge, there was no
sign on a bridge that he had brought forth legislation to name
[in a previous year].
HB 369-NAMING BONDSTEEL BRIDGE OF HONOR
CHAIRMAN KOHRING said the next matter before the committee was
HOUSE BILL NO. 369, "An Act naming bridge number 1121, across
the Knik River, the Sergeant James Bondsteel Bridge of Honor;
and providing for an effective date." He said that the bill has
been brought by request of the governor.
Number 144
LADDIE SHAW, Director, Veterans Affairs, Department of Military
& Veterans Affairs (DMVA), testified via teleconference. He
said the department appreciates the bill. He said there are
about 68,000 veterans in the state, and that it is nice to see
there is legislation honoring veterans. He told the committee
that the department would like to see the bridge named after Mr.
Bondsteel.
Number 170
REPRESENTATIVE MASEK thanked Laddie Shaw, Carol Carrol, General
Oates [all of the DMVA], and the governor for putting the bill
forward. She said it would be a great thing for the state to
honor Mr. Bondsteel since he was a Congressional Medal of Honor
winner. She said it was a well-deserved request, and that she
was putting her whole support behind its passage.
Number 183
REPRESENTATIVE MASEK made a motion to move HB 369 from committee
with individual recommendations and zero fiscal notes with
unanimous consent. There being no objections, HB 369 was moved
out of the House Transportation Standing Committee.
HB 350-TERRORISTIC THREATS
CHAIRMAN KOHRING announced that the next matter before the
committee would be HOUSE BILL NO. 350, "An Act relating to
terroristic threatening." [In committee packets was a proposed
committee substitute (CS), Version F.]
Number 197
REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature, sponsor
of HB 350, testified before the committee. She said that the
bill is the result of an incident in the Sitka airport. An
individual was frustrated over his bags' being searched. He
made a verbal threat to an Alaska Airlines employee that he
would return to the airport as an assassin. Representative
McGuire said it was her understanding that the witnesses who
testified to what occurred said it was a frightening and
disruptive situation. Representative McGuire said it did not
cause an evacuation or bodily harm, but she expressed her belief
that situations like this will become more common as a result of
the terrorist attacks of September 11, 2001. She said she had
looked at the statutes pertaining to terroristic threatening to
make sure that prosecutors had "all of the tools available" to
prosecutors. She said upon looking at the statutes, she
discovered those dealing with terroristic threatening could be
strengthened.
REPRESENTATIVE McGUIRE said that the case ended in the
individual "walking away" without state or federal prosecution.
She said one of the reasons was a question of jurisdiction. The
federal government did not prosecute because the threat was not
made by telephone or on the plane itself. The State of Alaska
decided not to prosecute the individual. Representative McGuire
said that decision was a controversial one. She said that the
prosecution had "tools available" such as fourth degree assault.
Representative McGuire said she would like this legislation to
make it painfully clear that life has changed since September
11. She said air travel has become a very serious matter. She
said her intent is to "add some tools to the prosecutor's tool
belt."
Number 254
REPRESENTATIVE McGUIRE said she was aware that some of the
committee members were uncomfortable with the language in the
original House bill. She referred to [paragraph] (2), beginning
on line 15. She said it stated that:
A person would commit a crime of terroristic
threatening if they knowingly threatened a person
actually engaged in providing transportation services
or transportation [support] services with physical
injury, regardless of whether the person had the
ability to carry out the threat or intended to carry
out the threat, and [the person] threatened [actually
was] placed in fear of physical injury.
She said it was not her intent to debate that deletion, but she
wished to explain what her thought was in introducing the
language. She offered the "fire in a crowded theatre" analogy
from law school. She said in the analogy the individual does
not have matches, but the harm is evident immediately because of
the fear instilled in the people in the theatre. She said she
wanted to capture the notion because of the possibility of a
similar situation in an airport due to the terrorist attacks of
September 11. She said after September 11, a claim to return as
an assassin, or the assertion of one's having a bomb, would
cause panic and fear. She wanted the bill to make people
realize that there are consequences to the words people use.
She said she was willing to accept the proposed (CS).
CHAIRMAN KOHRING asked if there was a motion to adopt the CS.
Number 292
REPRESENTATIVE KOOKESH asked if Chairman Kohring was the one who
had proposed the CS.
CHAIRMAN KOHRING said that it was initiated by him, and said
that his aide had gone around to as many committee members as
possible to see if there was a concurrence on making the
modifications.
REPRESENTATIVE McGUIRE told Representative Kookesh that she was
comfortable with the language and said she would be working with
the Department of Law, as well as Representative Rokeberg, to
pursue the same idea without the language being so broad.
Number 301
REPRESENTATIVE OGAN asked if the "fire in a crowded theatre"
analogy was a First Amendment issue or an assault issue.
REPRESENTATIVE McGUIRE said it was an assault issue.
REPRESENTATIVE OGAN asked why the person was not charged with
and prosecuted for fourth degree assault. He said an action
that puts someone in fear of physical harm is fourth degree
assault. He said unless the person was not taken seriously,
there were clearly grounds to charge and prosecute.
REPRESENTATIVE McGUIRE said she could not know the mind of the
particular prosecutor, but said she understood there was a
jurisdictional issue, and perhaps a political issue. She said
that there was a question of whether the person fit the elements
of the crime. The ultimate decision rested on the person's
inability to meet the elements of the crime. She said the
district attorney characterized the incident as one of poor
taste and bad judgment. Representative McGuire expressed her
belief that it was more than that. She said that she would have
prosecuted the case.
Number 336
REPRESENTATIVE SCALZI moved to adopt the proposed CS, version
22-LS1300\F, Luckhaupt, 2/13/02. There being no objection,
Version F was before the committee as the working document.
REPRESENTATIVE OGAN surmised that this crime would be a class C
felony. He said that the House Judiciary Standing Committee had
been looking at several bills relating to classification as
felonies. He said the results of being a convicted felon were
serious, such as the loss of the right to vote or own a gun. He
asked if a felony conviction would be appropriate when no one
was caused fear by what amounted to an idle threat.
REPRESENTATIVE OGAN then raised the issue of someone using bad
judgment by going through security, forgetting something, and
bolting back through security in the other direction.
Representative Ogan asked if in this scenario, would the fact
that a whole wing of an airport had to be shut down would make
the individual a felon. He asked how that theoretical person
would be affected by the bill.
Number 367
REPRESENTATIVE McGUIRE said that under Version F, the crime of
terroristic threatening already exists as a class c felony in
statute. She said Version F adds "public area", "mode of public
transportation", "disruption of the schedule of an entity
providing transportation services", and threats to oil
transportation, water, and sewer facilities. She said it is
considered more serious because the potential for harm is
greater. She expressed her belief that it is appropriate to
place the threat of public facilities within the realm of a
class C felony.
REPRESENTATIVE McGUIRE addressed Representative Ogan's second
point. She said that the scenario of the person returning back
through security would be a question for the prosecution. The
prosecution would "have that tool in their tool belt" and would
have to argue the elements of the crime. She said that times
had changed since September 11. She said terroristic
threatening is already a class C felony.
Number 410
REPRESENTATIVE SCALZI drew the inference that since this is a
subjective law, if the bill were passed, the prosecutor could
take the same action as was taken in the Sitka case and say it
was bad judgment. He asked if they could not use the same
subjectivity under Version F.
REPRESENTATIVE McGUIRE said under Version F, the Sitka situation
would not even be addressed. She said all it adds to the
existing terroristic threatening law is if it concerns a public
area as well as a regular building; if the schedule of a
transportation-providing entity is disrupted; or there is an
assertion that a false threat exists or is about to exist that
is dangerous to an oil or gas pipeline [or] supporting facility,
utility, or water pipe. She said the committee chose to remove
the language that would have included the incident in Sitka in
terroristic threatening.
REPRESENTATIVE SCALZI said he does not like "hate crime
legislation." He said that the prosecution could make the
determination of whether someone is a threat or not. He asked
if either the proposed CS or the original bill would make a
difference in whether or not the prosecution would have to
proceed.
REPRESENTATIVE McGUIRE said that the prosecution would not have
to proceed under the new legislation. The elements would have
to be proven just the same.
Number 444
LINDA WILSON, Deputy Director, Public Defender Agency,
Department of Administration, testified via teleconference. She
said that her comments were initially to address what she saw as
the broadness of the language in the original bill. She said
that Version F corrects that.
REPRESENTATIVE MASEK asked if she would be detained if she were
talking about a bomb or spoke about a bomb in an airport. She
asked if she would have to say she was going to "blow the
airport up" to be detained. She asked for a clarification of
the "fine line."
REPRESENTATIVE McGUIRE referred to [page 2, beginning at line
8]. She said that the person must knowingly make a false report
of a circumstance that disrupts the schedule of an entity
providing transportation services for persons or property, or
causes an evacuation. She said that under the current statutes,
one could already be convicted of terroristic threatening if one
caused the evacuation of "the building itself." All that is
added to the language is, "public area or mode of public
transportation", and onto the false-report language, "disrupts
the schedule of an entity providing transportation".
REPRESENTATIVE McGUIRE said "it is like any other crime": there
is a mental state and the actual fact of whether a false report
was made, and public defenders would probably argue something
different than the prosecution.
Number 478
REPRESENTATIVE MASEK asked what would happen if she were to just
talk about a bomb at an airport.
REPRESENTATIVE McGUIRE said that the prosecution would have to
assess, via witnesses or security cameras, whether an individual
knowingly made a threat or not. They would then have to assess
if the report was false, and then there would have to be an
action such as an evacuation. She said there were several
checks and balances in Version F. She said the language being
removed from the original bill has made the new version very
tight and specific. Representative McGuire expressed her
belief that sitting in an airport chatting about a bomb would
not rise to the level of terroristic threatening.
REPRESENTATIVE OGAN said he shared some of Representative
Masek's concerns. He gave the example of a child running
through airport security to see his father. He said someone
might "hit the panic button" and shut down the whole wing of an
airport in such a case. He said that some things happen and
people are not always intending to be terroristic. He expressed
his concern that "somebody is going to slip through the cracks."
He paraphrased Benjamin Franklin, saying; "Those who compromise
their liberty to gain security deserve neither." He said he
supports Representative McGuire's intention in the legislation
but expressed concern about the potential for dire consequences
and misunderstandings.
REPRESENTATIVE McGUIRE said she empathized with Representative
Ogan's concerns, but as with any crime, the elements must be
proven. She made clear that it would not be as simple as an
evacuation being caused, and someone automatically being
convicted of a class C felony. Once again, she said that a
mental state must be met for the crime to be committed. She
said this would prevent Representative Ogan's example from being
an example of terroristic threatening. She said the language is
narrow, and a mere accident would not lead to a class C felony.
REPRESENTATIVE OGAN thanked Representative McGuire for putting
it on the record so that people defending those charged with
terroristic threatening can research the bill in the future if
need be. He asked what the lesser-included offense for the
crime would be.
REPRESENTATIVE McGUIRE said she did not know. She said the
lesser-included offense is another "way out." She said if the
elements of the case are not met, they are not met. After
Representative Wilson expressed confusion about some of her
references to Version F, Representative McGuire explained that
the confusion was the result of her having a written addendum
instead of the new draft. She said that the only difference
between her draft and those held by the committee members was
line 20. She said "when referencing Section 2 on your draft, it
is lines 18 through 21."
CHAIRMAN KOHRING voiced his concern that there may already be a
law adopted at the federal level that would address the same
issues as Version F.
Representative McGUIRE said she did not know if there was, but
added that it did not matter because of the jurisdictional
issue. She said there is a fine line between the federal and
state jurisdiction. She said that this bill aims at shoring up
holes in the federal jurisdiction that require threats to be
either made via a telephone or on an airplane. She followed up
on Representative Ogan's question about the lesser-included
offense. She said that it would be a class A misdemeanor.
Number 590
CHAIRMAN KOHRING said that it would be prudent to exercise
restraint in the process of improving security. He said he
shared Representative Ogan's concern of prosecuting those who
did not intend to commit a serious crime. He said he also
understood Representative McGuire's position that there are a
lot of "hoops" to "jump through."
TAPE 02-2, SIDE B
Number 593
CHAIRMAN KOHRING said that it is a fine line between safety and
freedom.
REPRESENTATIVE McGUIRE said she agreed, and said it is a good
thing to acknowledge that line. She said she appreciates the
comments of everyone on the committee. She said it is the job
of policymakers to be aware of the fine line between
overprotection and freedom. She expressed her hope that the
bill is a good "middle ground."
Number 582
REPRESENTATIVE KOOKESH said that the legislation is good, but
added that what leads to people making remarks that are "out of
line" is the frustration of passengers. He said that he did not
want to see people punished for frustration. He said he travels
frequently and that he could understand why the individual in
Sitka was frustrated with his luggage being lost. He said he
identified with Representative Ogan, and that he wanted to make
sure that there is some discretion in determining whether a
particular activity is terroristic threatening, or if it is
frustration.
REPRESENTATIVE McGUIRE agreed with Representative Kookesh's
concerns, but said it was important to remember that as policy
makers, [legislators] are in the business of protecting public
transportation. She listed some of the resources and public
facilities that must protected, and said the bill was broader
than just applying to airports. Representative McGuire said the
bill is making the statement that Alaska's public facilities
deserve protection.
Number 549
REPRESENTATIVE WILSON said that some of the issues that members
were concerned and frustrated with in Version F, would be taken
care of in the House Judiciary Standing Committee.
REPRESENTATIVE WILSON made a motion to move the CS for HB 350,
version 22-LS1300\F, Luckhaupt, 2/13/02 out of committee. There
being no objection, CSHB 350(TRA) was moved out of the House
Transportation Standing Committee.
REPRESENTATIVE OGAN introduced Daria Siromaha, a Ukrainian
exchange student at JDHS, who had been "shadowing" him and
learning about the American system of government.
HB 405-CRIMES COMMITTED ON STATE WATERCRAFT
CHAIRMAN KOHRING announced that the next matter before the
committee would be HOUSE BILL NO. 405, "An Act relating to the
prosecution of criminal offenses committed on or against ferries
and other watercraft owned or operated by the state; and
providing for an effective date."
Number 526
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor of
HB 405, testified before the committee. He said the bill gives
the state jurisdiction over state owned watercraft, including
watercraft outside of state waters. He told the committee that
a superior court judge dismissed the prosecution for a sexual
assault that occurred on an Alaska ferry in Canadian waters.
The court found no statutory authority to prosecute the crime,
even though the defendant and the victim were both Alaskans. He
said that the federal government has jurisdiction over U.S.
vessels in Canadian waters under federal maritime law. He said
the dismissal is a concern because it is unlikely to be
prosecuted by either the federal or Canadian governments.
Representative Meyer said that the federal government rarely
prosecutes sexual assault cases, and Canada has little interest
in prosecuting such a case. He said it is prudent to pass a law
that will protect and defend passengers on Alaskan vessels. He
said HB 405 would eliminate a loophole that would prevent the
state from prosecuting such crimes in the future.
REPRESENTATIVE MEYER introduced Anne Carpeneti from the
Department of Law and told the committee that she was
responsible for bringing the case to his attention. He said
that she told him of a 16-year-old girl who was sexually
assaulted on the MV Matanuska in Canadian waters. Upon reaching
Ketchikan, the girl reported the crime to police authorities.
The district attorney in Ketchikan presented the case to a grand
jury, which then returned an indictment for one count of sexual
assault in the first degree, one count of sexual assault in the
second degree, and multiple counts of misdemeanor assault.
Without a statute authorizing the state to prosecute in these
circumstances, Alaska had no jurisdiction, said Representative
Meyer. He said if the federal government will not protect and
defend Alaskans, "then we must."
Number 501
REPRESENTATIVE SCALZI said the bill speaks for itself. He said
there is a jurisdictional problem in federal waters. He posited
that the state should look out for its property and the people
onboard.
Number 496
REPRESENTATIVE WILSON said it was "very scary" to her and added
that if "we were in other waters, there would be no one that
would be able to do anything." She said she would like to co-
sponsor the bill.
Number 492
REPRESENTATIVE OGAN said the bill raises interesting legal
questions. He asked that Annie Carpeneti join the sponsor at
the table.
Number 489
REPRESENTATIVE OGAN asked Ms. Carpeneti if there are "dicey
legal issues" when a crime is committed in the sovereign waters
of another country when "it is on our boat." He asked if there
is case law that speaks to the issue.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section (Juneau), Criminal Division, Department of Law, answered
that she has looked up federal jurisdiction, and the federal
government does have the right to prosecute in this case. She
said that she has not researched Canadian jurisdiction and added
that the Canadians have not filed charges. She said that they
would not likely do so.
REPRESENTATIVE OGAN put forward the possibility that the
Canadian government did not file charges because the ship had
not stopped in a Canadian port to file charges with the Canadian
police authorities. He said he did not want to see sex
offenders getting away, but he wondered what authority the state
had in the matter.
Number 480
MS. CARPENETI said there are three possible jurisdictions in the
case. She said the federal government can prosecute under
maritime jurisdiction, and it has statutes prohibiting sexual
assault. The Canadian government can prosecute, and Alaska can
prosecute. She said the ferries are [State of] Alaska-owned
property and they carry Alaskan crewmembers as well as Alaskan
passengers and tourists. Ms. Carpeneti said the case law speaks
to whether or not there is enough connection to a jurisdiction
"for it to satisfy concerns of due process." She said it is
clearly fair for Alaska to prosecute this case.
REPRESENTATIVE OGAN said he would be interested to see some case
law research on the matter.
MS. CARPENETI said she could share some of the research she has
on the issue.
Number 442
REPRESENTATIVE WILSON asked about the letter from the
Inlandboatmen's Union of the Pacific that was in the bill
packet. She pointed out the question from line 4 that asked,
"Why should we have to resort to the feds at all?" she asked Ms.
Carpeneti to address the question.
MS. CARPENETI said it seemed the idea of the question was, "Even
though the federal government could prosecute this crime, why
shouldn't Alaska be able to do so too?" She said the state is
prohibited from pursuing prosecution if another jurisdiction has
already done so. She said Alaska is not trying to stack a
second criminal prosecution; at this point no one has
prosecuted.
REPRESENTATIVE KOOKESH said the way he looked at it, this bill
would offer a third option to the state. He said if the federal
government or Canadian government pursues prosecution, it would
be fine. If neither does, Alaska should have the ability to do
it. He said that is the intent of the bill and it makes sense.
Number 420
REPRESENTATIVE SCALZI said his knowledge of maritime law is that
the state can write law as long as it does not supersede the
federal law. He said just because a ship enters another
country's waters, federal maritime law does not fall away
onboard ship. He said he does not believe that maritime law and
state law would be conflicting.
MS. CARPENETI said Representative Scalzi's summation was
correct, but she said the state and federal government could
exercise concurrent jurisdiction in an area like the one in
question. She said this is dependent on the fact that the
federal government has not preempted and taken charge of the
case. She said that in this case, it has not.
Number 406
LINDA WILSON, Deputy Director, Public Defender Agency,
Department of Administration, testified via teleconference. She
said the agency does not support or recommend HB 405. She said
jurisdiction over crimes allegedly committed on U.S. documented
or registered vessels in foreign waters already exists. That
jurisdiction exists in federal courts or in the courts of
foreign nations. She said crimes allegedly committed in waters
of other states fall under the jurisdiction of that state. She
gave a scenario of a crime committed by a Washington State
resident, upon a Washington State resident, on an Alaskan ferry
tied to the dock in Bellingham, Washington. She told the
committee that under HB 405, the crime would come under the
jurisdictions of the federal, Washington State, and Alaska
courts.
MS. WILSON said there are questions in the Bellingham scenario
of whether or not it was a constitutional exercise of
jurisdiction, and she added that perhaps it could be challenged.
She said legislation proposed for one particular case often is
not the best approach. She said the bill is overly broad and
the agency does not support it.
Number 388
REPRESENTATIVE WILSON asked Ms. Wilson what she would suggest
Alaska do in the sexual assault case in question.
MS. WILSON said Alaska should promote that either the federal or
Canadian government prosecute the case.
REPRESENTATIVE WILSON asked Ms. Wilson if she was saying that
Alaska should try to talk another country or the federal
government into doing something, instead of doing something
itself.
MS. WILSON said, "Under that circumstance, yes."
CHAIRMAN KOHRING said he identified with Representative Wilson's
concerns and told the committee that there was a loophole in the
law. He said Alaska should have a statute to be able to take
action in these types of circumstances. He said another similar
incident might get thrown out of court without this legislation.
REPRESENTATIVE WILSON raised the question of "Where would we be
if this was our wife or daughter?"
Number 368
REPRESENTATIVE OGAN said his concern was that the appropriate
jurisdictional questions be answered so that if this were to
happen, the case would not be thrown out. He asked Ms. Wilson
if there are jurisdictional conflicts if a ferry is tied up in a
Washington State port and a crime is committed and reported to
Washington authorities.
MS. WILSON said she could see the potential for a jurisdictional
struggle.
REPRESENTATIVE OGAN said that it is inconvenient for a ferry to
pull into a port to report a crime, even though that might be
the proper jurisdiction.
Number 345
REPRESENTATIVE KOOKESH said jurisdictional fights are good. In
that way, at least someone will prosecute.
REPRESENTATIVE OGAN asked what would happen if Alaska did not
like the punishment handed down by one of the other
jurisdictional courts.
REPRESENTATIVE KOOKESH said that it does not matter. He said
that with HB 405, if there was no jurisdictional fight, and no
other court were to step in, Alaska would be able to prosecute.
MS. CARPENETI responded to one of Ms. Wilson's comments. She
said that Alaska has prosecuted under similar circumstances
before, and the jurisdictional issues had not arisen until
recently. She told of a similar case where a crewman was
assaulted in Canadian waters. She said that she expects the
jurisdictional issue to be raised in that case. She said that
there were no jurisdictional issues raised before recently, but
she expects more to be raised in the future.
Number 320
REPRESENTATIVE WILSON moved to report HB 405 out of committee
with individual recommendations and zero fiscal notes.
REPRESENTATIVE MASEK asked if the bill had been referred to the
House Judiciary Standing Committee, since she did not feel
comfortable releasing legislation without some of the questions
being fully resolved.
CHAIRMAN KOHRING said Ms. Wilson cast some doubt over the bill,
but said that a serious crime has gone unpunished. He said that
he felt the bill could address the issue and called it a
"potential tool."
Number 302
CHAIRMAN KOHRING asked if there were any objections to moving
the bill from committee. There being no objection, HB 405 was
moved out of House Transportation Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Transportation Standing Committee meeting was adjourned at 2:45
p.m.
| Document Name | Date/Time | Subjects |
|---|